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Johnson v. GMAC Mortgage Corp.2/22/2005
t AIM, GMAC, and Mortgage Corporation (count six); a claim for conversion against GMAC (count seven); and a claim for punitive damages against all of the defendants (count eight).
On December 3, 2002, Mr. Johnson filed a first amended petition. The first amended petition added a claim against GMAC for failure to release the deed of trust (count nine), but was otherwise identical to the original petition.
Mortgage Corporation and GMAC then moved to dismiss counts two through nine of Mr. Johnson's first amended petition for failure to state a claim. The circuit court granted the motion for reasons that will be addressed as pertinent below. The court further granted Mr. Johnson leave to file an amended petition.
On July 21, 2003, Mr. Johnson filed a second amended petition. In that petition Mr. Johnson did not reassert his claims for fraud, slander of title, prima facie tort, punitive damages, and release of the deed of trust. Instead, he added claims against AIM and GMAC for violations of TILA (counts one and two) and a claim against GMAC to quiet title (count four). In his TILA counts, Mr. Johnson requested damages for the TILA violations. He also revised his claims for declaratory judgment (count five) and conversion (count six) against GMAC. He revised his Missouri Merchandising Practices Act claim (count three) by dropping Mortgage Company and GMAC from that claim.
GMAC filed a motion to dismiss counts two, four, five, and six of Mr. Johnson's second amended petition. The trial court granted the motion in its entirety.
Mr. Johnson raises five points on appeal. First, he argues that the trial court erred in dismissing his first and second amended petitions because he stated a claim for relief under TILA. Second, he argues that he stated a claim for declaratory judgment in his first and second amended petitions based upon violations of TILA. Third, he argues that he stated a claim to quiet title in his second amended petition based upon violations of TILA. Fourth, he argues that he stated a claim for violations of TILA in his second amended petition because those allegations related back to the filing of his first amended petition so that the statute of limitations does not bar what otherwise would be untimely TILA claims. And fifth, he argues that he stated a claim for conversion in his first and second amended petitions because GMAC was not entitled to any payment under TILA and he made payments to GMAC for a specific purpose but GMAC diverted those payments to another use.
II . STANDARD OF REVIEW
This court reviews de novo the grant of a motion to dismiss, examining the pleadings to determine whether they invoke principles of substantive law. See Koger v. Hartford Life Ins. Co. , 28 S.W.3d 405, 409-10 (Mo. App. W.D. 2000). As the Missouri Supreme Court has said:
A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause of action that might be adopted in that case.
Bosch v. St. Louis Healthcare Network , 41 S.W.3d 462, 464 (Mo. banc 2001) (quoting Nazeri v. Mo. Valley Coll. , 860 S.W.2d 303, 306 (Mo. banc 1993)).
III . ANALYSIS
A. Neither Mr. Johnson's Original Petition Nor his First Amended Petition is Properly Before this Court<
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